Appeals court orders new sentence for Guatemalan caught re-entering U.S.

WASHINGTON -- A federal appeals court ordered a new sentencing Friday for an illegal Guatemalan immigrant, saying a lower court incorrectly classified the man's earlier attempted rape conviction as a "crime of violence."

A three-judge panel of the 9th U.S. Circuit Court of Appeals said Alvaro Gonzalez-Monterroso's conviction of attempted fourth-degree rape was not a crime of violence under federal sentencing guidelines, and thus should not have led to a 16-level enhancement in his sentence.

Gonzalez, who pleaded guilty after he was caught illegally re-entering the U.S. in 2010, was subsequently sentenced to 51 months in prison in 2011. The appeals court reversed that sentence and ordered him back to U.S. District Court for a new sentencing.

A spokesman for the U.S. Attorney's Office in Phoenix said the office would not comment on the decision, which it was still reviewing Friday. A call to Gonzalez's attorney, Roger Sigal, was not immediately returned Friday.

Gonzalez first illegally entered the U.S. about 15 years ago, according to the opinion, and settled in Delaware where he lived for almost a decade.

Gonzalez was living there when he was convicted of attempted fourth-degree rape of a 14-year-old girl. Gonzalez, who was 28 at the time, was driving the girl home from church when pulled over "began rubbing on her thigh, tried to kiss her and asked her to have sex with him," the court said.

He was convicted in early 2010 and deported, but was back in the U.S. after only "several months." He was arrested in Arizona on July 26, 2010, and charged with one count of illegal re-entry.

Gonzalez pleaded guilty in 2011 to illegal re-entry, which called for sentencing guidelines at level 8. But a presentence report said the Delaware crime was a "sexual abuse of a minor," which is considered a violent crime. That called for a 16-level increase in the sentencing guidelines, to a sentence ranging from 51 to 63 months.

Gonzalez argued that he was only convicted of an "attempt" crime on the state level, which - compared to the generic federal attempt offense - did not qualify his conviction as crime of violence.

The court agreed. Judge Sandra Ikuta, writing for the appeals panel, said that Delaware's definition of an attempt "criminalized more conduct than the federal generic attempt offense." Because of that, she wrote, Gonzalez's attempt crime did not qualify as a crime of violence and justified a resentencing.

"Whatever the underlying facts of the evidence presented, Gonzalez still would not have been convicted of an offense with the same elements as an attempt crime of violence," Ikuta wrote. "His sentence was procedurally and substantively unreasonable."

In a concurring opinion, Judge J. Clifford Wallace said the panel did not even need to go that far, since the underlying crime Gonzalez was convicted of attempting did not meet the definition of a crime of violence.

"There is nothing in the record … to indicate that Gonzalez actually compelled his victim. The government has instead consistently argued his crime was a forcible sex offense solely because of the victim's age," he wrote. "Gonzalez was not convicted of a generic ‘forcible sex offense.'"